92 Decision Citation: BVA 92-26932
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 92-02 307 ) DATE
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THE ISSUE
Entitlement to waiver of recovery of an overpayment of
improved pension benefits.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
C. L. Mason, Associate Counsel
INTRODUCTION
This matter came before the Board of Veterans' Appeals
(Board) on appeal from a May 1991 decision by the Committee
on Waivers and Compromises (Committee) of the St.
Petersburg, Florida Department of Veterans Affairs (VA)
Regional Office (RO). The veteran served on active duty in
the Armed Forces from October 1951 to November 1953. A
notice of disagreement was received on June 13, 1991. A
statement of the case was issued on July 8, 1991. A
substantive appeal was received on August 9, 1991. A
hearing was held at the RO before members of the Committee
in October 1991. A supplemental statement of the case was
issued on December 18, 1991. The case was received and
docketed at the Board in March 1992. The veteran is
represented by Disabled American Veterans, and that
organization submitted a written argument to the Board on
May 7, 1992. The case is now before the Board for further
appellate review.
REMAND
Upon reviewing the evidentiary record, the Board observes
that the Committee, in reviewing the veteran's claim in May
1991, found no fraud, misrepresentation or bad faith.
However, they denied the veteran's claim on the basis of the
principles of equity and good conscience. In a December
1991 supplemental statement of the case, the RO in the
reasons and bases stated that the Committee, after reviewing
all the evidence of record, found bad faith, and thus,
waiver is precluded by law. According to the applicable
regulations, a supplemental statement of the case is
furnished when additional pertinent evidence is received
after a statement of the case or when a material defect in
the statement of the case is discovered or when, for any
other reason, a statement of the case is inadequate.
38 C.F.R. § 19.31 (1991), 57 Fed. Reg. 4106 (1992). A
supplemental statement of the case is not used to change the
decision of the Committee, only to explain the reasons and
bases for the decision of the Committee.
Furthermore, the supplemental statement of the case states a
different legal basis for the decision, but it includes no
citations to laws and regulations and no explanation as to
how the applicable law and regulations, i.e., 38 U.S.C.A.
§ 5302; 38 C.F.R. § 1.969 (1991), were applied to the
specific facts of the appellant's case. In order to afford
due process of law to the veteran, the Board believes that
additional development is required, and this case should be
REMANDED to the RO for the following action:
The Committee should formally review the
veteran's claim and issue a formal
decision, stating the exact legal basis
for the decision taking into account all
the evidence. Following completion of
the above action, the RO should furnish
the veteran and his representative with a
supplemental statement of the case
containing recitation of the pertinent
evidence, applicable law and regulations,
and reasons and bases for decision. The
supplemental statement of the case should
include all information necessary to
assure that the veteran is fully informed
of the basis of the decision, as required
under the provisions 38 U.S.C.A. § 7105
(West 1991).
The veteran and his representative should then be afforded
the opportunity to respond to the supplemental statement of
the case prior to the return of the case to the Board for
further review.
The purpose of this REMAND is to assure that the veteran is
afforded all due process of law. The Board intimates no
final disposition by this action.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
G. H. SHUFELT
C. D. ROMO
(CONTINUED ON NEXT PAGE)
38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United
States Court of Veterans Appeals. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal. 57 Fed.
Reg. 4126 (1992) (to be codified as 38 C.F.R. § 20.1100(b)).